Statement of Principles concerning fibromyalgia (Balance of Probabilities) (No. 108 of 2021)

Fibromyalgia is defined in subsection 7(2) as a syndrome of chronic widespread pain, with associated somatic symptoms, persisting for at least three months, meeting three diagnostic criteria: a widespread pain index (WPI) score of at least 7 with a symptom severity scale (SSS) score of at least 5; or a WPI of 4 to 6 with an SSS of at least 9; pain present in at least 4 of 5 specified body regions (left upper, right upper, left lower, right lower, axial); and the pain and symptoms are not better accounted for by another medical or psychiatric condition. The WPI counts pain in 19 body parts within those regions over the last week. The SSS totals two components: severity of fatigue, waking unrefreshed, and cognitive symptoms (each scored 0-3, summed to 0-9), plus the number of additional symptoms (headaches, lower abdominal pain/cramps, depression) present in the last six months (each scored 1, summed to 0-3). The definition is prescriptive and excludes pain in the jaw, chest, and abdomen from counting toward the required number of regions, though such pain still counts toward the WPI.

The instrument’s core legal concept is the factor. The four factors in section 9 are the only pathways by which fibromyalgia can be related to relevant service on the balance of probabilities. They are exhaustive; no other causal mechanism is recognised. Severe childhood abuse (defined in the Dictionary) means serious physical, emotional, psychological, or sexual harm, or neglect involving serious failure to provide necessities, while a child aged under 16, perpetrated by a parent, care provider, an adult who works with or around the child, or any other adult in contact with the child. Being overweight or obese means a BMI of 25 or greater at the time of clinical onset. Autoimmune inflammatory condition associated with the development of arthritis is not further defined within the SoP, creating reliance on medical judgement and potentially on other SoPs via section 11. Inability to obtain appropriate clinical management is also not defined; it will require evidence of a failure in the system relative to the person’s relevant service.

Relevant service is defined in the Dictionary restrictively. It means eligible war service (other than operational service) under the VEA, defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. This excludes the most active or dangerous service categories, meaning the SoP applies primarily to peacetime and non-operational service. The term “terminal event” is defined to include pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function, used only for death from fibromyalgia. The definition of death from fibromyalgia (subsection 7(5)) covers death contributed to by fibromyalgia, not just direct causation.

The SoP directly affects veterans and members of the Australian Defence Force who have rendered relevant service as defined and who are diagnosed with fibromyalgia or who die with fibromyalgia as a contributing cause. Relevant service is limited to eligible war service (excluding operational service), defence service (excluding hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. This means the instrument does not apply to claims arising from operational service (e.g., combat deployments) or hazardous service (e.g., service in certain declared areas) where the standard of proof is the reasonable hypothesis standard under the VEA. For persons with operational service, a separate SoP may exist under subsection 196B(2) (reasonable hypothesis), but this particular instrument is for the balance-of-probabilities standard only. Therefore, the SoP primarily affects veterans who served in non-operational roles, peacetime defence members, and those with defence service that is not hazardous or British nuclear test defence service.

Medical practitioners are affected indirectly because the diagnosis must meet the prescriptive criteria in subsection 7(2). A practitioner’s diagnosis using looser clinical criteria may not satisfy the SoP’s definition. This may influence clinical documentation and the evidence required in claims. Decision-makers at the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission must apply the SoP when determining liability. The Administrative Appeals Tribunal and courts hearing merits review are also bound by the SoP’s framework.

Legal and medical professionals advising claimants must understand the precise definitions and factors. The restrictive list of factors may disadvantage claimants who cannot point to severe childhood abuse, pre-existing overweight/obesity, an autoimmune condition, or inability to obtain appropriate clinical management. Claimants with idiopathic fibromyalgia arising solely from service stress without childhood abuse or weight issues have no recognized pathway. Similarly, the definition of relevant service excludes many types of service, so the SoP may not assist members with operational or hazardous service unless they use a different SoP.

The SoP also affects the system administratively. It sets a single evidentiary standard, reducing discretion but also potentially increasing the need for expert medical evidence to establish, for example, that an autoimmune condition existed at clinical onset or that the person was unable to obtain appropriate clinical management. This raises compliance costs and may deter claims.

The SoP does not create duties in the ordinary sense of imposing obligations on individuals. Instead, it establishes the legal test that decision-makers must apply. The duty of the decision-maker is to determine whether at least one of the four factors in section 9 exists in the claimant, and whether that factor is related to the claimant’s relevant service. The duty is to apply the definitions strictly: the diagnostic criteria for fibromyalgia must be met as defined, not merely a clinical label. The decision-maker must also apply section 11 if a factor refers to an injury or disease for which another SoP exists; that other SoP then supplies its own factors.

Claimants have the right to have their claim assessed against this SoP if their service is of the type specified. The right is procedural: to have the balance-of-probabilities test applied using these factors. There is no right to a different causal pathway; the list is closed. The SoP also implicitly creates a right to rely on the “inability to obtain appropriate clinical management” factor, but that factor is limited by section 10(2) to aggravation or material contribution where fibromyalgia existed before or during service but did not arise out of service. This means it cannot be used to establish initial causation.

Medical practitioners who provide reports have no duty under the SoP, but their reports must address the specific criteria. For instance, if a practitioner diagnoses fibromyalgia using the 2016 American College of Rheumatology criteria, but does not calculate the WPI or SSS as specified, the diagnosis may not satisfy subsection 7(2). The SoP imposes an informational burden on the claimant to obtain evidence that conforms to the legislative definition.

The concept of death from fibromyalgia (subsection 7(5)) means the claimant’s estate must show that a terminal event (listed as pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function) was contributed to by fibromyalgia. This requires medical evidence linking fibromyalgia to the event, which may be difficult given fibromyalgia is not a direct cause of death.

The SoP itself contains no penalties or enforcement provisions. It is not a penal instrument. However, it operates within a broader statutory scheme (VEA and MRCA) that may impose criminal penalties for fraud or false statements in claims, but the SoP does not reference those. Enforcement is through the claims determination process: a claim may be refused if none of the factors exist, or if the definition of fibromyalgia is not met. There is no direct monetary penalty or imprisonment for failing to comply, because compliance is not an obligation on a person but a condition for entitlement.

Indirect penalties may arise for claimants who make statements inconsistent with the SoP. For example, if a claimant asserts fibromyalgia based solely on a medical report that does not meet the subsection 7(2) criteria, the claim will be rejected, potentially wasting time and resources. There is no penalty for bringing an unmeritorious claim, but costs may be awarded in litigation. For medical practitioners, providing a certificate that does not reflect the SoP criteria is not itself penalised under this instrument, but could affect the practitioner’s credibility or lead to professional misconduct inquiries if the certificate is deliberately false.

The SoP’s enforcement is left to administrative review. A decision made without proper application of the factors or definitions can be overturned on appeal. Section 5 limits application to claims under section 120B of the VEA and section 339 of the MRCA, so enforcement only occurs within those claim types. If a decision-maker erroneously applies the reasonable hypothesis standard when this SoP should be used, the decision is legally erroneous and can be set aside. That is the practical enforcement mechanism.

The SoP is made under the VEA (subsection 196B(3)) and expressly applies to claims under both the VEA and the MRCA by reference in section 5. It interacts with the substantive provisions of those Acts, particularly sections 120B of the VEA and 339 of the MRCA, which establish the balance-of-probabilities standard for certain service types. The SoP does not override those Acts; it fills in the content of what constitutes a “connection” with service.

Section 11 provides a significant interaction mechanism: if a factor in section 9 refers to an injury or disease for which another SoP exists, then the factors in that other SoP apply as in force from time to time. For example, factor (3) refers to “an autoimmune inflammatory condition which is associated with the development of arthritis”. That condition (e.g., rheumatoid arthritis) likely has its own SoP. The claimant must then also satisfy the factors in that SoP to establish the presence of that condition as a step toward fibromyalgia. This creates a chain of causation that can be complex, requiring multiple diagnoses and factor analyses. The reference to “as in force from time to time” means the claimant benefits from any later amendments to the referenced SoP.

The SoP’s definition of fibromyalgia references ICD-10-AM code M79.7 but clarifies that the meaning is given by subsection 7(2), not the code. This ensures the SoP is not bound by updates to the ICD coding system. However, the ICD code is still used for administrative recording.

The definition of relevant service in the Dictionary is narrower than many categories under the VEA and MRCA. It specifically excludes operational service, hazardous service, and British nuclear test defence service. This means claimants with those service types cannot use this SoP; they would need a reasonable hypothesis SoP (if one exists) or rely on direct connection under other provisions. The SoP also does not apply to claims for service under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 if those are not covered by the VEA or MRCA; the instrument is limited to those two Acts.

This instrument repeals and replaces the Statement of Principles concerning fibromyalgia No. 14 of 2014 (F2014L00018). The previous SoP was made under the same subsection 196B(3). The new SoP updates the diagnostic criteria and factors. The most notable changes from the 2014 SoP are not described in the instrument itself, but comparison to the prior SoP would show differences. The 2014 SoP likely used earlier diagnostic criteria (e.g., American College of Rheumatology 1990 or 2010). The current SoP adopts a newer definition based on the 2016 criteria (WPI, SSS, region requirement, and exclusion of other conditions). The factor list also appears refined: the 2014 version included “having a diagnosis of chronic fatigue syndrome” or “having a psychiatric condition” as factors; the 2021 version removed those and added “being overweight or obese at the time of clinical onset” and “inability to obtain appropriate clinical management”. The definition of severe childhood abuse has been tightened to require perpetration by an adult in contact, not just any person. The instrument also now includes explicit notes and a more detailed dictionary. The commencement date is 22 November 2021, with a one-month gap between making and commencement (made 22 October 2021). The repeal of the 2014 instrument means claims determined before November 2021 would have been assessed under the old criteria; claims after that date fall under the new criteria, unless transitional provisions in the VEA apply. The instrument is a legislative instrument registered on the Federal Register of Legislation.

The source text does not reference any litigation history. This SoP is too recent to have generated significant case law. However, the 2014 SoP and earlier versions led to numerous cases in the Administrative Appeals Tribunal and federal courts, particularly concerning the definition of fibromyalgia and the interpretation of “severe childhood abuse”. The 2021 SoP will likely be contested on similar grounds. The definition of fibromyalgia in subsection 7(2) may be challenged for requiring a specific scoring system that is not universal in medical practice. The “not better accounted for by another medical or psychiatric condition” requirement is a frequent point of dispute in chronic pain claims. The “inability to obtain appropriate clinical management” factor in subsection 9(4) may generate litigation over what constitutes “appropriate clinical management” and whether a veteran’s service contributed to that inability. The restriction in section 10(2) that this factor only applies to aggravation or material contribution, not causation, is another likely source of appeals.

Claimants may argue that the list of factors is too narrow and that other evidence should be considered, but the SoP is binding and the authority’s view on sound medical-scientific evidence (section 8) is given weight. Litigation might also arise over the definition of “relevant service” - particularly whether peacetime service under the MRCA includes certain types of training exercises that are arguably hazardous. The exclusion of operational and hazardous service from this SoP means claimants with those service types cannot rely on it, but they could argue that their claim should be assessed under the reasonable hypothesis standard instead, which uses a different SoP. In practice, the Repatriation Medical Authority is occasionally challenged on the adequacy of its reasoning in determining factors, but the standard of review is deferential.

Several aspects of the SoP can trap unwary claimants and advisers. First, the diagnostic criteria in subsection 7(2) are not identical to common clinical criteria. Many doctors diagnose fibromyalgia using the 2010 or 2016 ACR criteria without formally calculating the WPI and SSS, or without applying the “not better accounted for” exclusion strictly. A claim may fail because the medical report does not explicitly state the WPI and SSS scores, even if the diagnosis is otherwise correct. The exclusion clause (“not better accounted for by another medical or psychiatric condition”) means that if the claimant has a comorbid condition such as rheumatoid arthritis or depression, the decision-maker may conclude that the pain is better accounted for by that condition rather than fibromyalgia, even if fibromyalgia is also present.

Second, the list of factors is exhaustive and none covers “stress of service” or “psychological trauma from service” unless that trauma qualifies as severe childhood abuse (which can only occur before age 16). Service-related trauma in adulthood, such as combat stress or bullying, is not a factor. This is a major gap for many veterans whose fibromyalgia onset may be linked to deployment or military workplace stress.

Third, the definition of “severe childhood abuse” requires perpetration by a parent, care provider, adult who works with or around the child, or any other adult in contact with the child. This excludes abuse by peers or siblings (if under 18? The definition says “adult” so sibling abuse by another child is not included). The abuse must be “serious” - not merely minor or moderate. Evidentially, this requires documentation or corroboration.

Fourth, “being overweight or obese at the time of clinical onset” (factor 2) uses a BMI of 25 or greater. This is a low threshold; many people are overweight. But it must be at the time of clinical onset, which requires medical records from that time. If the veteran became overweight after onset, it does not satisfy the factor.

Fifth, factor (3) “autoimmune inflammatory condition associated with the development of arthritis” - the SoP does not define which conditions qualify; it will require engagement with other SoPs. Conditions such as rheumatoid arthritis, psoriatic arthritis, and ankylosing spondylitis likely qualify, but inflammatory bowel disease or lupus may not be “associated with the development of arthritis” unless arthritis is present. This creates a potential argument.

Sixth, the scope of factor (4) “inability to obtain appropriate clinical management” is limited by section 10(2) to aggravation only, and only where fibromyalgia existed before or during service but did not arise out of service. This factor cannot establish causation; it can only explain worsening. Moreover, “inability” must relate to the person’s service - e.g., posting to a remote base where specialist care unavailable. The failure of a civilian GP to provide appropriate care generally would not be related to service.

Seventh, the SoP’s definition of “relevant service” excludes operational service, hazardous service, and British nuclear test defence service. Many veterans with combat or hazardous service will not be able to use this SoP. They must instead rely on a reasonable hypothesis SoP, but none exists for fibromyalgia as of this writing? The Repatriation Medical Authority may have a separate reasonable hypothesis SoP, but this instrument is only for balance of probabilities. Claimants should verify which SoP applies to their service type.

Eighth, the instrument applies to claims under section 339 of the MRCA, which is for peacetime service. MRCA members with peacetime service can use this SoP, but those with warlike or non-warlike service under MRCA may have a different standard. The interaction with MRCA provisions is complex.

Compliance here means establishing a successful claim under the SoP. The steps are evidentiary and procedural. First, the claimant must obtain a diagnosis of fibromyalgia that meets the specific definition in subsection 7(2). The medical report should explicitly state the WPI score (0-19) with reference to the 19 body parts, the SSS score (0-12) with breakdown of severity scores for fatigue, waking unrefreshed, cognitive symptoms, and presence of headaches, lower abdominal pain, and depression, and the number of regions (at least 4) that have pain. The report must also affirm that the pain and symptoms are not better accounted for by another medical or psychiatric condition. Using a checklist based on the Dictionary definitions is prudent.

Second, determine which factor in section 9 applies. If severe childhood abuse is claimed, the claimant must provide evidence of the abuse: for example, police reports, medical records, child protection documents, or credible witness statements. The abuse must have occurred before age 16 and must be perpetrated by an adult as defined. If overweight/obesity is claimed, the claimant must show BMI of 25 or greater at the time of clinical onset, typically through medical records or service medical documents. If an autoimmune inflammatory condition is claimed, the claimant must first satisfy the terms of the applicable SoP for that condition (e.g., rheumatoid arthritis SoP) and show it was present at clinical onset. If inability to obtain appropriate clinical management is claimed, the claimant must document a lack of access to appropriate care that is attributable to service (e.g., posting location, delays in care, failure of Defence to provide treatment) and show that this inability contributed to or aggravated fibromyalgia that already existed.

Third, establish that the factor is related to relevant service. For factors (1) to (3), the connection must be to service; for factor (4), the connection is to aggravation and must be related to service under section 10(2). The claimant should provide evidence linking the factor to service: e.g., service records showing deployment to a location where abuse occurred? This may be difficult for childhood abuse; the factor only requires that the abuse existed, not that it was caused by service - so the link to service must be established under section 10(1) as a general requirement that the factor (not its cause) is related to service? Section 10(1) says “The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.” This is ambiguous: does it mean the factor must have occurred during or as a result of service? For childhood abuse, that seems impossible unless the abuse happened while the person was in service (unlikely for under 16). This suggests a potential drafting issue or that “related to” is interpreted broadly to mean simply that the factor is present and the claim is about service-related compensation - a strained reading. In practice, the factor itself does not need to be caused by service; the connection is that the factor exists and the person has service. The note to section 10 is not present, but standard interpretation is that the factor must exist and the person must have rendered relevant service; the factor need not be service-caused. But this is a gotcha.

Fourth, gather all medical evidence and compile it with references to the SoP sections. Consider engaging a specialist rheumatologist or pain physician familiar with the WPI and SSS scales. Submit the claim with a covering letter specifying which factor is relied on and how the diagnostic criteria are met.

Fifth, if the claim is refused, consider merits review or appeal to the AAT, focusing on any misinterpretation of the definition or failure to consider evidence. Be aware of time limits and the ability to introduce new evidence.